The future of Wills: The Law Commission’s recommendations for reform
22 May 2025
3 min read
/Passle/5d9604688cb6230bac62c2d0/SearchServiceImages/2025-05-22-07-52-38-855-682ed7c63c4f94520e090144.jpg)
The Law Commission has published its recommendations for an extensive re-writing of the law relating to Wills in England and Wales.
This includes significant changes to who can make a Will, how Wills are made (including the possibility of electronic Wills), and suggesting a widening of the Court’s discretion to accept Wills where before they may have been invalid and to assess whether a Will truly reflects a person’s wishes.
This article written by Lydia Morris, a solicitor in our private wealth team, considers the details of the Law Commission's conclusions.
The current law on Wills
The current Wills Act dates back to 1837 and the authorities for many common law Will rules trace back to the 19th century or earlier. The Law Commission's new proposals in its recent report and draft bill published on 16 May 2025 are designed to "ensure that this important area of law is fit for purpose today".
All the proposals are aimed at "supporting testamentary freedom, protecting testators, and increasing clarity and certainty in the law".
Key proposals
Below we summarise some of the key proposals from the Law Commission:
Minimum age for making a Will
| The minimum age for making a Will would be reduced from 18 to 16. |
| Electronic wills | Provisions to allow for the creation of electronic Wills. These Wills could be created and stored digitally, provided they meet stringent safeguards. These include secure digital signatures, verified identity checks, and reliable storage systems to prevent tampering or fraud.
|
| Testamentary capacity | The current test for whether someone is mentally capable of making a Will is over 150 years old (based on the 19th century case Banks v Goodfellow). The Commission recommends using the Mental Capacity Act 2005 test which is the same test already used in other areas of law. |
| Revocation of wills | Under current law, getting married automatically cancels your existing Will (unless you planned for it). The Commission recommends abolishing this rule, citing concerns about “predatory marriages” where vulnerable individuals are manipulated into marriage, unintentionally revoking their previous wills. Under the new framework, a Will would remain valid unless expressly revoked, even after marriage or civil partnership. |
| Undue influence | The report recommends clearer statutory guidance on the doctrines of undue influence and knowledge and approval. Undue influence covers situations where someone was pressured or coerced into making or changing a Will in a way that does not reflect their true intentions. If undue influence can be proved, a court can set aside certain provisions or the entire Will. These changes aim to reduce ambiguity and improve the ability of courts to assess whether a will truly reflects the testator’s wishes. |
| Court powers | At the moment, if a Will is not signed or witnessed properly it is usually invalid even if it clearly reflects your wishes. The Commission wants to change that. In exceptional circumstances, the Law Commission suggests that Courts should be allowed to accept Wills that do not meet all the formal rules, if there is strong evidence of what you intended. |
Government response
The Law Commission is an advisory body so these proposed changes are not going to be automatically adopted.
The Government has welcomed the report, noting that it is the first major review of the law on making wills since the Wills Act 1837 was passed. It will now consider the report before responding formally.
What do I need to do?
The draft bill, if enacted, would replace the Wills Act resulting in significant changes to the creation of Wills and their interpretation.
While no immediate action needs to be taken by individuals in response to the Law Commission’s report, it is a helpful reminder to ensure Wills are up to date and reflect your true intentions.
Burges Salmon has extensive experience advising individuals on their wills and estate planning. If you would like advice, please contact our Private client and family law team.